This
guide has been prepared by the Office of Administrative Law (OAL) to explain
the administrative hearings process in New Jersey. It is important to
remember that the information presented in this guide is general and is
intended to cover the usual situation. The explanations do not cover all
of the possible situations that may arise in a case. If you have more
questions, consult the Uniform Administrative Procedure Rules that
are found in Title 1, Chapter 1 of the New Jersey Administrative Code.
(The legal citation is N.J.A.C.
1:1-1.1 et seq.)
The OAL is an independent State agency that provides an independent and
neutral hearing. Requests for hearings are initially sent to the appropriate
state agency; that agency then sends the case to OAL for the hearing itself.
An administrative law judge (ALJ) employed by the OAL hears the case and
writes the initial decision. In nearly all instances, the initial decision
is then forwarded to the agency that sent the case to the OAL. The head
of that agency reviews the initial decision and has the right to adopt,
reject or modify what the ALJ decided. The agency head's decision is the
final decision. In hearings regarding special education issues,
the ALJ's decision is final; there is no review by any agency head.
Appeal of a final decision is available in the judicial branch. (See
below.)

Notice
of Filing

When a case is sent to the OAL for a hearing, a Notice of Filing
or a Notice of Filing and Hearing is mailed to the parties. This
Notice indicates that the agency has sent the request for hearing to the
OAL; it also contains other information that can help one prepare for
the hearing, as well as a contact telephone number at the OAL. The Notice
also contains a brief explanation of the basic issues that will be discussed
at the hearing. The docket number (OAL DKT. NO.) that is used to
identify the case throughout the OAL administrative process appears at
the top right side of the Notice of Filing.

Prehearing
Conference

If appropriate to the subject matter of the case, a prehearing conference
may be scheduled. The parties or their representatives and the ALJ will
discuss the issues presented and the procedures that will be used at the
hearing. The possibility of settling the case may also be discussed. The
prehearing conference is usually conducted by telephone conference call.
The Notice of Prehearing Conference indicates the time, date, and
place of the prehearing conference, the name of the ALJ who will conduct
the conference, whether it will be in person or by telephone, and what
will be discussed at the conference. Any party may request a prehearing
conference by letter or telephone call to the assigned judge, or if not
yet advised of the name of the assigned judge, to the Clerk's office.

Notice
of Hearing

The
Notice of Hearing provides information regarding the time, date,
and place for the hearing, the name of the ALJ who will hear the case,
and the procedures at the hearing. Usually this is sent out at least several
weeks before the hearing, unless there are emergency circumstances.

Adjournments

If
the date of the hearing or prehearing conference is a problem, an adjournment
must be requested immediately.N.J.A.C. 1:1-9.6 explains the adjournment process.
An adjournment will only be granted if there is a very good reason to
do so that could not have been reasonably foreseen or prevented. Contact
the OAL at the phone number listed on the Notice to request an adjournment.
If the parties have already appeared before an ALJ, an adjournment request
is made directly to the ALJ. The other party or parties to the case should
be contacted to see if they will agree to an adjournment and to possible
alternate dates before the OAL is contacted. When the OAL is notified,
the party requesting an adjournment will be asked the reason for the request,
whether or not the other parties have been contacted, and whether they
agree to the adjournment. If the request is granted, a new date will be
set for the conference or hearing. If there is a dispute regarding a request
for adjournment, it may be necessary for the judge to hold a telephone
conference with all parties to resolve the request.

Discovery

Discovery,
or the gathering of information about the case prior to the hearing, should
begin immediately. Discovery in OAL hearings is explained inN.J.A.C. 1:1-10.1 through 1:1-10.6.
Through discovery you can ask the opposing party to respond to written
questions (called interrogatories) or to provide copies of documents.
To do so, simply deliver, in person or by mail, the request for answers
to interrogatories or for copies of documents to the other party. If a
party refuses to respond or if the request for discovery appears to be
unfair, the ALJ may need to be notified. The matter may be resolved with
a telephone conference call between the ALJ and all of the parties.
If you receive a request for discovery, you must either provide the information
within fifteen days of receiving the request or object to the request
by conference call within ten days of receiving the request. If you do
not receive a response to your discovery request, you must notify the
ALJ and other parties by telephone conference call within ten days of
the date that you should have gotten the response. If you receive an inadequate
response to your discovery request, you must notify the ALJ and other
parties by telephone conference call within ten days of receiving the
response.
If a conference call is not conducted within these time limits, the right
to obtain information or to object to a discovery request may be forfeited.
In any case, all discovery must be completed ten days before the first
hearing date.

If
the testimony of a person who has firsthand knowledge of something important
to the case is necessary, he or she must attend the hearing and testify.
If he or she will not attend voluntarily, a subpoena must be issued. A
subpoena is a legal document that orders a person to appear at the hearing
and to give testimony. The subpoena form and instructions
may be found at this website. Subpoenas are delivered to the witnesses
either in person or by sending them certified mail (return receipt requested).
In either case, a record of the delivery should be maintained so that
there is proof that the subpoena was received by the person. The subpoena
should be delivered immediately in order to give the witness time to get
ready for the hearing. A witness fee must be included with the subpoena.
If the witness lives in the county where the hearing will be held, the
fee is $2.00 a day. If the witness lives in another county, the fee is
an additional $2.00 for every thirty miles the witness must travel. If
a party needs the testimony of a person who is an expert, such as a doctor,
an additional fee may be required.
A person who is subpoenaed and feels that his or her presence at the hearing
is unnecessarily or unfairly required can object to the ALJ with notice
to the parties. An ALJ will consider the objection and decide whether
that person must obey the subpoena. Other questions about the subpoena,
such as whether you have to be there exactly at the time specified, are
directed to the person who requested the subpoena. His or her name and
telephone number appear on the subpoena.

Motions

The
ALJ may be asked by the parties to make a number of decisions before the
hearing begins and during the hearing itself. For example, the ALJ may
be asked to change the hearing date, to decide whether a person must obey
a subpoena, or to sustain an objection to a discovery request. The technical
term for all these requests is a "motion." A motion should be
made in writing to an ALJ with a copy to the other parties. A motion does
not have to be in any special form; a letter is sufficient. Motions during
the course of the hearing are usually made orally. More information
about motions can be found inN.J.A.C. 1:1-12.1 through 1:1-12.7.

Representation

An
attorney may represent a party or a party may present the case him or
herself. Additionally, in some cases a non-lawyer may assist a party at
the hearing. Some examples are, a paralegal or assistant employed by legal
services; a principal of a close corporation; a union representative in
a civil service case; and an individual who is permitted by federal law
to appear in a Special Education case. In Family Development, Medical
Assistance, and Youth and Family Services cases the non-lawyer can ask
to be allowed to appear on the day of the hearing. In all other cases,
the non-lawyer must complete a Notice of Appearance/Application
form [available on this website] and return it to the OAL at least
ten days before the hearing.

Hearing
Preparation

In
preparing for a hearing, it may be helpful to make a list of all information
that relates to the case and that needs to be presented. Bring the originals
and two copies of all documents to the hearing so that one can be given
to the other party and one to the ALJ.
Persons who have firsthand knowledge of the case should be asked to attend
the hearing to testify. (see subpoenas above) Please note that an expert
witness will generally receive a fee.

In each case, the ALJ decides who will present evidence first and how
the hearing will proceed. This decision will be based on which party is
requesting the action, on which party has the most evidence, and on what
would be the most practical and orderly way to develop the issues in the
case.
In some cases, the ALJ will see if a settlement of the case is possible
before the hearing begins. This discussion will usually take place off
the record; that is, it is not recorded by tape or by a court reporter.
If settlement cannot be reached, the hearing will continue.
Before the actual presentation of the case begins, the ALJ will explain
the procedures that will be followed and also state what the hearing is
about. A party confused about the procedures or about the ALJ's statements
concerning the case, should let the ALJ know and ask questions.
The ALJ will allow each party to present witnesses and other evidence.
The ALJ will also permit each party to question the other party's witnesses.
This is called cross-examination. All relevant evidence may be presented,
including hearsay, which is, generally, statements repeated by a witness
that were made by another person. The ALJ may, however, limit presentation
of evidence if it is repetitive, overly time-consuming, abusive, too prejudicial,
or irrelevant.
A record of everything that is said will be made at the hearing, so it
is important that everyone speak in a loud, clear voice. The hearing will
either be tape recorded or transcribed by a stenographer.
The ALJ is an independent, impartial person with no personal stake in
the outcome of the case. The ALJ will attempt to get at the truth of the
matter and to understand and fairly evaluate the position of each party.
In doing so, the ALJ may ask questions of any participant in the hearing.

Post-Hearing
Submissions

In
some cases, the ALJ will ask for additional documents to be submitted
after the hearing. It is also possible that the ALJ will ask for a written
argument, or brief, after the hearing. This written argument can be in
the form of a letter and simply states the factual and legal reasons that
support a position on the case.

Decision
of ALJ

If
the ALJ does not ask for additional documents or for briefs, the case
ends on the last day of the hearing. If the ALJ asks for additional documents
or briefs, a date will be set by which those documents must be received.
The case will end on that date. The ALJ will not consider documents received
after this date. A party cannot supply additional information, either
to the ALJ or the agency head once the case ends. Prior to the issuance
of the ALJ's decision, a motion may be filed to reopen the record, however,
such motions are granted only for extraordinary circumstances. The decision
usually is due within forty-five days from the date the case ended. In
some cases the decision is due in less than forty-five days, if so, the
ALJ will indicate the due date at the end of the hearing.

Settlement

If
a settlement is reached before the hearing begins, the ALJ will ask the
parties to write out the terms of the agreement and to sign the settlement.
If it is not possible to do this on the hearing date, the ALJ will set
a date by which it must be prepared and signed.
The ALJ may also ask that the parties meet in the hearing room and place
the settlement terms "on the record." This means that the parties
will explain the agreement and state that they understand and voluntarily
agree to the terms. Once the terms are in writing and signed by the parties,
the ALJ will issue a decision. This decision and the settlement are then
sent to the agency. If the agency already agreed to the settlement, the
case is over. If not, the agency head has forty-five days to review the
settlement as he or she would review an initial decision in any other
case.

Withdrawal
of Hearing Request

If
the party who requested the hearing no longer wishes to proceed with the
hearing process, he or she must write to either the ALJ or the Clerk of
the OAL. Upon receipt of the withdrawal, the case will be closed and the
file returned to the agency. If a hearing request is withdrawn, the agency
may proceed with any proposed action.

Failure
to Appear

A
party, who has not appeared at the time and place of the hearing, must
call the ALJ immediately to explain why. If the ALJ is not contacted and
given an explanation for the failure to appear, the case will be sent
back to the agency. The agency may then proceed with any proposed action.
If an emergency arises on the hearing date and a party will be late for
the hearing, a call should be made to the ALJ or to the phone number on
the notice to explain the problem.

If
the hearing was tape recorded, a party must write to the Clerk of the
OAL to request a transcript. A deposit of $300.00 per hearing day must
accompany the request. The requesting party must also notify all parties
that the transcript was requested. When the transcript is ready, the requesting
party will be billed for the actual cost of preparation and reimbursed
for any overpayment.
If the hearing was recorded by a court reporter, the request for a transcript
is made directly to the reporting firm. The requesting party must notify
the OAL Clerk and the other parties of the request and tell the firm to
provide a copy of the transcript to the OAL Clerk. The firm will require
a deposit and will bill the requesting party for the cost of preparing
the transcript.
Any party may get a copy of the tape of any hearing that was tape recorded
by OAL by sending blank cassette tapes to the OAL Clerk. The hearing tapes
will be copied onto the blank cassettes at no charge.

Filing
Exceptions to Initial Decision

A
party who objects to any of the information contained in the initial decision
may file exceptions with the agency head. Usually exceptions must be filed
within thirteen days from the date the initial decision was mailed to
the parties, but you should check the end of the initial decision because
in some case they must be filed sooner. The exceptions may be in a letter
and should explain the particular portions of the initial decision with
which you disagree and the specific reasons for the disagreement. Information
that was not presented during the hearing cannot be included in the exceptions.
A copy of the exceptions should also be sent to the other parties and
the ALJ. If the thirteen-day deadline cannot be met because you need to
order a transcript or get hearing tapes, write to the agency head and
ask for an extension. (See N.J.A.C.
1:1-18.8(d) and (e).
A party may reply to exceptions received from another party by writing
to the agency head and sending a copy to the ALJ and all of the other
parties.

Final
Decision

The
agency head can adopt, modify or reject the initial decision within forty-five
days of receiving it. If the agency head does not take any action within
the forty-five-day period, the initial decision automatically becomes
the final decision. A final decision that rejects or modifies the initial
decision must specify in detail the reason for rejection or modification
and the effect of the change. The final decision must also specify the
evidence that justifies the rejection or modification.
In special education matters, the judge's decision is the final administrative
decision.

Extensions
of Time for Initial Decision, Exceptions, Final Decision

The
time for issuing the initial and final decisions can be extended for forty-five
days if the Director of the OAL and the head of the transmitting agency
both sign an order agreeing to the extension. In that case, the parties
will receive a copy of the order. The head of the agency that will issue
the decision can grant an extension of the time for filing exceptions,
again, there must be good cause for the extension.

Appeals
from Final Decisions

Any
party may appeal a final decision to the Appellate Division of the Superior
Court. The Notice of Appeal must be filed within 45 days of the date of
the final decision. The Rules Governing the Courts of the State of
New Jersey provide the rules and procedures for filing the appeal.
Information regarding filing an appeal may be obtained from: Appeals Information,
Superior Court of New Jersey, Richard J. Hughes Justice Complex, PO Box
006, Trenton, New Jersey 08625.
The ALJ's decision in a special education case is final, thus a party
may appeal the decision of the ALJ either to the Superior Court of New
Jersey, pursuant to the Rules Governing the Courts of the State of
New Jersey, or to the District Court for the District of New Jersey
pursuant to 20 U.S.C.A. 1415(e)(2).

(The hyperlinks in the preceding text are posted with the permission
of LexisNexis.)